Order Heard learned counsel for the parties. 2. This L.P.A. has been preferred by the Senior Divisional Commercial Manager, South-Eastern Railway to challenge the judgement / order dated 13.05.2008 passed by the learned Single Judge of this Court whereby the writ petition of the respondent seeking quashing of the order dated 22.04.1996 passed by the Chief Rates Manager, South Eastern Railway imposing penalty of Rs.56,71,916/-was allowed and said liability has been set aside in writ petition being C.W.J.C. No.925 of 1996(R). 3. Learned counsel for the appellant vehemently submits that it is an admitted case, as has been admitted by the respondent petitioner, that the respondent-petitioner mis-described the commodity and got it booked and paid the lower freight and same matter came up earlier to this Court as respondent-petitioner preferred a writ petition being C.W.J.C. No. 1144 of 1995 (R) which was decided by this Court vide order dated 04.12.1995 and according to the learned counsel for the appellant, in view of the said order/ judgement of this Court passed in the writ petition filed by the respondent-petitioner, the writ petitioner cannot state that it was not a case of mis-description of commodity. It is also submitted that when fact of petitioner's mis-describing the goods and lower payment of freight came to the knowledge of the railway authority, a demand was raised against the writ petitioner for making payment of the difference in freight charges which the petitioner voluntarily without any protest paid to the railway administration. In view of this reason also, it was a clear case of deliberate mis-description given by the petitioner so as to mislead the railway authorities to charge lesser amount of freight charges. It is also submitted that the learned Single Judge though, has proceeded to decide the matter on the basis of finding recorded by the railway authority that there was no mens rea in the act of the petitioner so as to cause loss to the railway and gain for itself, whereas, the plea of mens rea is not available in the light of the language used in Rule 126(1)(a) of the Goods Tariff General Rules. It is also submitted that the authority concerned has no discretion to levy less amount of the penalty than prescribed in Rule 126(1)(a), therefore, also it clearly indicates that the Rule was mandatory with intention to give no discretion to the authority concerned in the matter of imposing of penalty and therefore, the plea of mens rea which prevailed before the Single Bench has no application to the facts of the case. It is also submitted that the writ petitioner is a company already engaged in the trade of Sponge Iron since long and cannot be say to have no knowledge of the name of its own product. 4. Learned counsel appearing for the respondent vehemently submits that in view of the law as laid down by the Hon'ble Apex Court in the case of Hindustan Steel Limited Vs. The State of Orissa reported in S.T.C. (25) 1970 pg.211. In the case of Commissioner of Sales Tax, Uttar Pradesh Vs. Sanjiv Fabrics reported in (2010) 9 S.C.C. 630 . In the case of Commissioner of Central Excise, Chandigarh Vs. Pepsi Foods Limited reported in (2011) 1 S.C.C. 601 , the mens rea is an important ingredient without which there cannot be invocation of penal provision. 5. It is also submitted that it was not a case of mis-description in any manner because the writ petitioner clearly stated at the first instance that the commodity in question is known not only by Sponge Iron but also is known as “direct reduced iron ore” and “iron ore direct reduced”. Not only this, the writ petitioner clearly indicated and placed on recored the material to substantiate its said contention with the help of the statutory name which is provided under the provision of the Excise Law which recognises the “direct reduced iron ore” or “iron ore direct reduced” as sponge iron. 6. Not only this, the writ petitioner clearly indicated and placed on recored the material to substantiate its said contention with the help of the statutory name which is provided under the provision of the Excise Law which recognises the “direct reduced iron ore” or “iron ore direct reduced” as sponge iron. 6. It is also submitted that so far as decision of this Court in W.P. No.1144 of 1995 is concerned, in that matter the writ petition was disposed of by this Court permitting the writ petitioner to submit representation before the appropriate authority of the respondent to challenge the quantum of the penalty imposed under Rule 126 and direction was given to the appellant to decide the representation of the petitioner with respect to the quantum of penalty and in fact, in respondent's earlier writ petition no issue much less to question of mis-description was decided by this Court. 7. It is also submitted that mere payment of the correct freight, when it was demanded itself, cannot be termed to be an admission of the respondent about the allegations levelled against the respondent of deliberate or otherwise mis-description of the commodity. 8. We have considered the submissions of the learned counsel for the parties and perused the facts of the case as well as the law relied upon by the learned counsel for the parties. So far as the question of mens rea is concerned we are benefited by the law laid down by the Hon'ble Supreme Court in the case referred above and one of which is relevant is the judgement delivered in the case of Commissioner of Sales Tax, Uttar Pradesh Vs. Sanjiv Fabrics reported in (2010) 9 S.C.C. 630 relied upon by learned counsel for the appellant. In the said case the provision of Section 10(b) of Central Sales Tax, 1956 was under consideration. Section 10(b) is the section which provides not only penalties but imprisonment also and it provides that in case of violation of any of the conditions mentioned in the sub-cause(a)to (f), the person shall be punished with simple imprisonment which may extend to six months, or with fine, or with both; and when the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues. The relevant clause which has been relied upon is clause (b) under section 10 of the Act of 1956 which is quoted as under :- “10. Penalties.- If any person- (b) being a registered dealer, falsely represents when purchasing any class of goods that goods of such class are covered by his certificate of registration; or” Therefore, it is clear from section 10 (b) itself that it is a harsh penal provision provided for punishment not only in term of money but also provides for imprisonment which may extend to six months. Further and not less important is that the Section 10(b) makes the act offence if one “falsely represents”. And false representation can be mental and conscious act of a person. Whereas in Rule 126 such requirement is not there. 9. Be that as it may, the Hon'ble Supreme Court observed that the broad principle applied by the Courts to answer the question about requirement of mens rea in the matter of statutory penal consequence that there is a presumption that mens rea is an essential ingredient in every offence but the presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals and both must be considered, then the Hon'ble Apex Court observed that although in relation to the taxing statutes, this Court has, on various occasions, examined the requirement of mens rea but it has not been possible to evolve the abstract principle of law which could be applied to determine the question, then the Hon'ble Apex Court observed that the answer to the question depends on the object of statute and the language employed in the provision of the statute creating the offence. There is no gainsaying that a penal provision has to be strictly construed on its own language. Then Hon'ble Supreme Court gave guidelines to find out the requirements of mens rea in para 30 of the said judgement which is quoted as under:- “30. There is no gainsaying that a penal provision has to be strictly construed on its own language. Then Hon'ble Supreme Court gave guidelines to find out the requirements of mens rea in para 30 of the said judgement which is quoted as under:- “30. To put it succinctly, in examining whether mens rea is an essential element of an offence created under a taxing statute, regard must be had to the following factors: (i) the object and scheme of the stature; (ii) the language of the section; and (iii) the nature of penalty.” And ultimately the Hon'ble Supreme Court observed that the use of expression “falsely represents” is indicative of the fact that the offence u/s 10(b) of the Act comes into existence only where a dealer acts deliberately in defiance of law or is guilty of contumacious or dishonest conduct and therefore, in proceedings for levy of penalty u/s 10-A of the Act, burden would be on the Revenue to prove the existence of circumstances constituting the said offence. 10. A bare perusal of the said judgement clearly indicates that the Hon'ble Supreme Court has also accepted this position that the issue has been examined on various occasions with respect to the involvement of mens rea in the matter of imposing of penalty by statutory provision and it has been held specifically that it is not possible to evolve an abstract principle of law which could be applied to determine the question and the question depends on the object of the statute and the language employed in the provision of the statute creating the offence. 11. We are benefited by another judgement delivered by the Apex Court reported in (2007) 7 SCC 269 in the case of Guljag Industries vs. Commercial Taxes Officer. The said judgement was delivered in the matter of the Sales Tax Act 1994 and it has been again observed that existence of mens rea, although is an essential ingredient of an offence but it can be excluded by the words of the statute creating the offence or by the subject matter with which it deals. The said judgement was delivered in the matter of the Sales Tax Act 1994 and it has been again observed that existence of mens rea, although is an essential ingredient of an offence but it can be excluded by the words of the statute creating the offence or by the subject matter with which it deals. The Hon'ble Supreme Court after considering the provision of Section 78(2) of the Act, 1994 declared that the requirement of carrier of goods in movement to carry prescribed forms is mandatory in nature of provision and is not directory and thereafter, in the said case it has been held that the defaulter cannot take the plea of absence of mens rea. It is true that in the earlier judgement relied upon by the learned counsel for the respondent in the case of Hindustan Steel Limited Vs. The State of Orissa reported in S.T.C. (25) 1970 pg.211 (supra) it has been observed by the Hon'ble Supreme Court that the order imposing penalty for failure to carry out a statutory obligation is a result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. But as already observed, that issue has already been considered by the Hon'ble Supreme Court in the recent judgement discussed above. Therefore, we have to look into the relevant provision applicable to the present case to find out in the present set of facts whether the plea of mens rea is available to the petitioner-respondent. Rule 126(1)(a) of the Goods Tariff General Rules is as under:- “126. Therefore, we have to look into the relevant provision applicable to the present case to find out in the present set of facts whether the plea of mens rea is available to the petitioner-respondent. Rule 126(1)(a) of the Goods Tariff General Rules is as under:- “126. Penalty for false declaration-(1)(a) if, on arrival at destination, it is found that goods have been improperly described and that a lower rate than that correctly applicable has been thereby obtained, charges at double the Class 300 X rate will be levied by the booked route as shown on the relative invoice.” 12. A bare perusal of the above Rule clearly demonstrate that if the goods have been improperly described by the sender and because of that mis-description a lower rate than the correctly applicable rate has been obtained by the Railway then charges at the double the Class 300 X rate will be levied by the booked route as shown on the relative invoice. 13. It appears that the said Rule has been enacted looking to the large volume of the Railway work where the work is assigned for booking of the goods to the staff and hundreds of persons are engaged in booking the goods, therefore, hereby primarily duty has been put upon the person who books the goods to describe the commodity properly for the purpose of levying of correct freight as he is the best person knowing what he is booking and cannot say that he was not knowing what goods he booked as he was not knowing the correct description of the goods he booked. It is impossible for holding an enquiry for each and every commodity at the time of its booking with railway whether the goods have been described correctly at the time of booking or can be found mis-described at the time of its delivery at destination. Another fact relevant in the said Rule is that no discretion has been given to the authority to levy lesser the penalty than the penalty prescribed in the Rule itself which may be one of the factor indicative that the discretion has not been given to the concerned authority to take lenient action against the party booking the goods to impose lesser than the amount of penalty prescribed. In view of the above reasons and the language employed in Rule 126(1)(a), the plea of mens rea, is not available to defaulters. 14. Even when the question of law is decided against the writ petitioner, the facts which have come on record are very much relevant for quashing of the impugned order dated 22.02.1996, imposing penalty upon the petitioner for mis-describing goods while booking for rail transport. 15. It appears from the facts, which are not in dispute that the petitioner had booked two consignments in between February, 1991 to April, 1992 from Chandil to Modinagar after paying the demanded charges for booking. When the consignment reached to its destination it was lifted. After more than two years on 22.07.1994, the petitioner was served with a demand from the Station Superintendent, South-Eastern Railway, Chandil stating that the petitioner had mis-described the goods while booking the consignments and on account of which the charges were calculated at reduced rate and the petitioner was therefore, liable to pay the balance of the charges at the re-calculated rate. Demand was accordingly raised of Rs.5,05,268/-in respect of the bill pertaining to one and another demand for payment of Rs.58,392/-in respect of the bill pertaining to another consignment. Undisputedly, the petitioner paid the original demand but when he was asked to pay the penalty of ten times to the original amount of difference of freight amounting to Rs.56,71,916/-the petitioner approached this Court by filing C.W.J.C. No. 1144/1995 (R). 16. The said writ petition No.1144/1995(R) was disposed of vide order dated 04.12.1995. The order is in detail, in which a direction was given to the respondent to approach the appellant by submitting representation and appellant-railway was directed to consider the representation of the respondent and pass a fresh order. 16. The said writ petition No.1144/1995(R) was disposed of vide order dated 04.12.1995. The order is in detail, in which a direction was given to the respondent to approach the appellant by submitting representation and appellant-railway was directed to consider the representation of the respondent and pass a fresh order. After representation of the writ petitioner respondent, the railway authority vide its order dated 22.02.1996 rejected the contention of the writ petitioner respondent and imposed the penalty to the tune of Rs.56,71,916/-and therefore, the petitioner again approached this Court by filing present writ petition being C.W.J.C. No. 925 of 1996 (R) which was allowed by the learned single Judge of this Court on 13.05.2008, however, on the ground that even the authority concerned itself held that there was no mala fide or ill intention of the writ petitioner in giving description of the commodity but since the description given is materially false and since the petitioner was dealing in the concerned commodity since long, therefore, it can be presumed that mis-description of the goods was given to get the benefit and therefore, the petitioner is liable to pay the penalty. 17. It appears from the impugned order dated 22.02.1996 itself that petitioner came up with a specific case that “direct reduced iron ore” or “iron ore direct reduced” are the name of the sponge iron which is used in industrial parlance as well as in business and also that the description is required to be given in the bills for the purpose of dealing in the Excise Act. This fact was taken note of in the order dated 22.02.1996 itself and we would like to quote the contention of the respondent writ petitioner as taken note of by the concerned authority itself which is as under:- “That the second condition is also not satisfied in view of the fact that the petitioner has properly described the goods as Direct Reduced Iron which is the correct description of the goods as approved by the Supdt. Central Excise, Jamshedpur and also by the Inspector, Central Excise Jamshedpur under Rule 178(b) of the Central Excise Rule and the copy of the said approval has duly been filed at the time of hearing of the case. Central Excise, Jamshedpur and also by the Inspector, Central Excise Jamshedpur under Rule 178(b) of the Central Excise Rule and the copy of the said approval has duly been filed at the time of hearing of the case. In the cash memo also the description of the goods was mentioned as Direct Reduced Iron in accordance with the description approved by the Central Excise authorities and the goods is also known as direct Reduced Iron in the market and as such, there is no improper description of the goods by the petitioner. It is up to the Booking Clerk to book the goods in accordance with the particular tariff in order to bring out the goods in a particular class. The petitioner do not know under which class the goods are to be booked and after giving the correct description of the goods the obligation cast upon the petitioner is fully discharged and it is up to the Booking Clerk to put the goods in the particular class in which it is fitted as per the tariff of the Railways.” 18. After going through the reasons given in the order dated 22.02.1996, we find that the said authority has not recorded any finding with respect to the plea of the petitioner that the “direct reduced iron ore” or “iron ore direct reduced” are whether not the name of the same commodity i.e. the sponge iron and had not rejected the petitioner's contention that the Inspector, Central Excise, Jamshedpur under Rule 178(b) of the Central Excise Rules has approved the description of the goods as “direct reduced iron ore” and this is the name given in the market of the goods therefore, in common parlance, it is know as “direct reduced iron ore”. It appears that the authority concerned failed to appreciate the meaning of mis-description. If one commodity has more than one name and is described by any of the name then that cannot be said to be a mis-description of the commodity. It appears that the authority concerned failed to appreciate the meaning of mis-description. If one commodity has more than one name and is described by any of the name then that cannot be said to be a mis-description of the commodity. Without looking into this aspect of the matter, it appears that the authority concerned proceeded to decide the matter only on the basis of the name of the company of the petitioner i.e. “Bihar Sponge Iron Ore Limited”, which is apparent from the reasons given in the impugned order (at page No. 9) and therefore, proceeded to observe that it cannot be believed that the petitioner was not knowing the name of its own commodity. At this juncture, the said authority itself ignored the petitioner's contention that the sponge iron is known by another name. 19. In view of the fact that there is an unrebutted evidence available on record as quoted above taken from the impugned order dated 22.02.1996, we find that the commodity sponge iron was known by another name given by the petitioner then it cannot be said to be a case of mis-description given by the petitioner. 20. So far as the contention of the learned counsel for the appellant that in earlier round of litigation, it has already been decided by the learned single Judge of this Court that it was a case of mis-description is concerned we are unable to subscribe to the view given by the learned counsel for the appellant because in the order in C.W.J.C. No. 1144/1995(R) the issue was with respect to imposing of penalty only and for which the petitioner was allowed to submit his representation for obtaining order afresh with respect to imposing of penalty and the question whether it was a case of misdescription itself was not relevant otherwise also in view of the reasons given by us in preceding paras, the order passed by the learned single Judge dated 04.12.1995 cannot be said to be a decision finally deciding the question of alleged mis-description of commodity. 21. So far as the payment of the difference of the amount of freight by the writ petitioner is concerned, from that it cannot be interfered that the petitioner paid that difference of freight because he accepted it as mis-description. 21. So far as the payment of the difference of the amount of freight by the writ petitioner is concerned, from that it cannot be interfered that the petitioner paid that difference of freight because he accepted it as mis-description. It can be a case that petitioner came to know only that the railway person at the time, by mistake has not correctly charged the freight as he also could not understand what was the commodity. The fact of less charge of freight was since brought to the knowledge of the petitioner that his commodity has been charged lesser than the required charge, then if he has paid that difference of amount that does not necessarily mean that it was on account of mis-description, he accepted to pay the more. 22. In view of the above reasons, we are of the considered opinion that there is no merit in the appeal, therefore, this appeal is dismissed though on the other grounds than the ground given by the learned single Judge. Hence this L.P.A. is dismissed. There is no order as to costs.